LAWSUITS

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Casinos and Sovereignty - In some states, only Indian tribes are allowed to own casinos. For those states, the issues of sovereignty and immunity are major considerations.

"We hold that the Governor does not have the constitutional authority to bind the State to a gaming compact that clearly departs from the State‘s public policy by legalizing types of gaming that are illegal everywhere else in the state. ... what is legal in Florida is legal on tribal lands, and what is illegal in Florida is illegal there. Absent a compact, any gambling prohibited in the state is prohibited on tribal land." (Supreme Court of Florida, No. SC07-2154, Florida House of Representatives v. Charles J. Crist, July 3, 2008)

Generally, Indian tribal courts cannot hear disputes between tribal members and nonmembers. One exception enables regulating nonmembers who enter agreements with tribes or their members. (6/25/08, Justices restrict Indian court's jurisdiction, U.S. Supreme Court Decision: Plains Commerce Bank v. Long)

Millions of people enter Indian reservations each year for work or play, unaware they might be leaving behind things they take for granted elsewhere, such as the right to sue if injured. Many personal-injury lawyers don't bother with people claiming they were hurt on tribal property, said Mark Merin, a Sacramento lawyer who helped draft ordinances that tribes use to deal with such situations. “They are basically out of luck,” Merin said. “The law is, (the tribes) have absolute immunity.” (12/17/07 - Most civil laws don't apply at reservation casinos)

California - In early August of 2005, the Chisley's, a couple from Fresno, California spent 3 nights on vacation at the Barona Valley Ranch Resort & Casino. At some point during their stay, they discovered the existence of small itchy bumps covering their bodies. Extremely angered and ashamed at what they have gone through at Barona, the Chisley's filed a claim for damages with Barona's insurance carrier. Barona's insurance carrier denied the claim. The Chisley's appealed their claims directly to Barona. Because the Chisley's challenged the inherent unfairness of Barona's court system, Barona decided to dismiss the Chisley's claims indicating that the Chisley's could not come back to its court again to hear those claims. (10/16/07 - Claim of bedbugs at casino resort dismissed by tribal court)

Washington - The city council adopted a tough resolution that authorizes legal action should the $510 million complex west of LaCenter win federal approval, a decision that isn't expected until later this year or sometime in 2008. Councilman Dan Tonkovich said he believes he has a moral responsibility as an elected official to take a position on the project. Tonkovich said the project would have "very negative impacts," from additional demand for affordable housing to increasing bankruptcies and other social problems associated with compulsive gambling. "They are devastating to families," he said. "They are devastating to individuals. They are devastating to children." Even though Washington already has a considerable amount of gambling, "I don't think it should give me the license to pour more fuel on the fire," Tonkovich said. (05/08/07 - WA City Council threatens to sue Feds over casino)

Although no longer possessed of the full attributes of sovereignty, they remain a separate people, with the power of regulating their internal and social relations. ... As the Court ... [has] recognized, however, Congress has plenary authority to limit, modify or eliminate the powers of local self-government which the tribes otherwise possess. First, operation of a casino is not a traditional attribute of self-government. Rather, the casino at issue here is virtually identical to scores of purely commercial casinos across the country. Second, the vast majority of the Casino's employees and customers are not members of the Tribe, and they live off the reservation. For these reasons, the Tribe is not simply engaged in internal governance of its territory and members, and its sovereignty over such matters is not called into question. (2/9/07 - US Court of Appeals, San Manuel Indian Bingo and Casino v. National Labor Relations Board, Case No. 05-1392)

Casino tribes must comply with federal labor laws. The decision against one of the state's wealthiest casino tribes, the San Manuel band of San Bernardino County, also took another bite out of the immunity that tribes have long enjoyed as sovereign governments. A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit rejected arguments from a wealthy Southern California tribe that as a sovereign government, it should not be subject to those laws. "Tribal sovereignty is not absolute autonomy, permitting a tribe to operate in a commercial capacity without legal constraint," said the opinion written by Judge Janice Rogers Brown. (U.S. Court takes another bite out of casino tribe 'immunity' 2/10/07)

New Mexico courts have jurisdiction over personal injury lawsuits that allege negligent acts at tribal casinos, the state Supreme Court ruled. "It's really the first time the tribes in New Mexico will be subjected to state jurisdiction," Kennedy said. "They have been trying to avoid this all along, yet still retain the right to gamble, to run their casinos." The Supreme Court said gambling compacts between New Mexico and the pueblos created concurrent jurisdiction in state courts over personal injury actions against tribal-owned casinos, and were valid and enforceable under the federal Indian Gaming Regulatory Act. (03/02/07 - NM courts have jurisdiction over personal injury lawsuits)

A New York citizens group (Upstate Citizens for Equality) that won a court ruling declaring Turning Stone casino is operating illegally plans to go back to court to get the casino shut down. The first suit sought only a ruling that the agreement between the state and the Oneida Indian Nation had never been ratified by the state Legislature and was thus invalid. A state judge ruled in UCE's favor in 2004, and the U.S. Supreme Court upheld that decision in December. Peterman told the group Monday that UCE hadn't thought it needed to ask for a shutdown of the casino in the original suit. "We were naive enough to believe that once we determined it was illegal, lo and behold, our politicians would do their job and uphold the law," Peterman said. (01/09/07 - UCE will seek closing of casino) Also see: Letter from Cornelius Murray to NY Office of Attorney General re: Peterman v. Pataki, 12/12/06)

On a 4-to-3 vote the justices rejected arguments by the Agua Caliente Band of Cahuilla Indians that the 1919 legal doctrine of tribal sovereign immunity bars the Fair Political Practices Commission from taking the tribe to court. According to the FPPC suit, the tribe in the late 1990s made unreported or late-reported donations to the tune of almost $9 million. FPPC Chairwoman Liane Randolph said it has been "one of the largest and at times they have been the largest" campaign contributor in the state.
The ruling was based on what the court majority described as evolving U.S. Supreme Court precedents "and the constitutionally significant importance of the state's ability to provide a transparent election process with rules that apply equally to all parties who enter the political fray." (12/22/06 - Calif. Supreme Court Ruling - Tribal immunity rejected)

A presentation before the American Bar Association in March 2005 outlines the legal cases which refute the inflated claims of "sovereignty" used by many casino tribes when trying to gain competitive advantages over other local businesses. "As Indian enterprises like casinos grow and enter interestate commerce in ways indistinguishable from non-Indian competitors, Federal laws, including labor and employment laws, will be asserted." "Indian tribes have some attributes of sovereignty, but these are frequently misunderstood and overstated." "These cases manifest the recognition that as Indian tribes increasingly engage in business activities in commerce with people and business organizations from outside their reservations, there is no sound reason to treat them differently than non-Indian businesses." The National Labor Relations Board "explicityly rejected the contention that Indian-owned enterprises are 'government' operations and therefore exempt."(San Manuel Indian Bingo and Casino, Richard G. McCracken, 2005)

"The Oneidas long ago relinquished governmental reins and cannot regain them through open-market purchases from current titleholders." (Supreme Court of the United States, City of Sherrill, New York v. Oneida Indian Nation of New York et al, certiorari to the United States Court of Appeals for the Second Circuit, No. 03-855, Argued January 11, 2005, Decided March 29, 2005: Syllabus - Opinion - Concurrance - Dissent)

"We hold that the Governor exceeded his authority when he agreed unilaterally to a compact term that permanently removes the subject of Indian gaming from the legislature's ability to establish policy and make law." "We hold that the Governor acted contrary to the public policy embodied in state law and therefore acted without authority by agreeing to allow the FCP Tribe to conduct new games that are prohibited by Article IV, section 24 of the Wisconsin Constitution and by Wisconsin's criminal statutes." (Panzer, et al v. Doyle, et al, Wisconsin Supreme Court No. 03-0910-0A, May 13, 2004) (680 N.W.2d 666 (Wis. 2004)

".. we have no difficulty determining that the Governor's actions were policy-making, and thus legislative in character ... Unsurprisingly, every State high court to consider the issue has concluded that the State Executive lacks the power unilaterally to negotiate and execute tribal gaming compacts under IGRA. ... Today we join those states in a commitment to the separation of powers and constitutional government" (Saratoga County v. Pataki, 2003, N.Y. Int. 83, June 12, 2003, 798 N.E. 2d 1047, NY 2003); U.S. Supreme Court review denied in Pataki v. Saratoga County Chamber of Commerce, U.S. Supreme Court Case No. 03-392, November 2003) (See Exhibit 3) (Also see: http://www.cagnyinf.org/legal.htm)(Also see: 05/05/06 - NY Casino Not Legal)

"The Governor has the ability to enter into compacts with Indian tribes, subject to the approval of the Legislature." (McCartney v. Attorney General, 587 N.W.2d 824, 827 (Mich Ct App 1998), appeal denied 601 NW 2d 101 (Mich 1999))

"That court [Sims] unambiguously held that the Governor lacked the authority to bind the state to the compacts. We agree with that decision. The compacts were therefore never validly 'entered into' by the state and, as a result, do not comply with IGRA." (Pueblo of Santa Ana, et al v. John J. Kelly and State of New Mexico, et al, U.S. Court of Appeals, Tenth Circuit, Case No. 96-2162, January 10, 1997)

"Based on our interpretation of state gambling laws as making casino-style gaming illegal, state constitutional law as limiting the authority of the executive branch, and the IGRA as not purporting to expand state gubernatorial power, we conclude that the compact executed by the Governor are without legal effect and that no gaming compacts exist between the Tribes and Pueblos and the State of New Mexico. Thus New Mexico has not entered into any gaming compact that either the Governor or any other state official may implement. (State ex rel. Clark v. Johnson, 904 P2d 11, NM 1995) (990 P2d 1277, N.M. 1999)

... the duty to negotiate imposed by federal law "is not of the sort likely to be performed by an individual state executive officer or even a group of officers", (Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 75 n.17 (1996).

"... the Governor as Chief Executive lacked both Constitutional as well as legislative authority to bind the State of Rhode Island by executing the Tribal-State Compact dated August 29, 1994, between the State of Rhode Island and the Narragansett Indian Tribe." (Narragansett Indian Tribe v. Rhode Island, 667 A.2d 280 (RI 1995)

... preventing entry of Kansas compact in Federal Register, "because only the governor - a person without authority - signed the compact, the State did not enter into the compact. Thus, the compact does not comply with [federal law] and is invalid". Kickapoo Tribe of Indians v. Babbitt, 827 F.Supp. 37, 46 (D.D.C. 1993), rev'd on other grds., 43 F3d 1491 (D.C.Cir. 1995)

State ex rel Stephan v. FinneyS, 836 P.2d 1169 (Kan 1992)

Re: Oregon Constitutional Prohibition of Casinos - "Article XV, section 4(6), of the Oregon Constitution states: The Legislative Assembly has no power to authorize, and shall prohibit, casinos from operation in the State of Oregon. In Ecumenical Ministries v. Oregon State Lottery Comm., 318 Or 551, 871 P2d 106 (1994), the Oregon Supreme Court construed the constitutional prohibition of the operation of casinos in Oregon, concluding that in adopting the prohibition, the voters intended to prohibit the operation of establishments whose dominant use or dominant purpose, or both, is for gambling. 318 Or at 562." "However, regardless of whether an establishment is a race track or another type of business, we regard a concentration of 75 video lottery terminals at any single establishment under one ownership or devoted to a single general function as having a high probability of violating the prohibition against the operation of casinos." (Oregon Attorney General Theodore Kulongoski, Oregon Attorney General Opinions: NO. 95-5 [48 Or. Op. Atty. Gen. 15] , December 12, 1995